MANAN SINGH Vs. MOSTT LAL BADAN

JUDGEMENT

(1.) This second appeal has been preferred by the plaintiffs-appellants against the judgment and decree dated 5-10-1985 passed in Title Appeal No. 130 of 1978/6 of 1985 by Sri P. Xaxa, 1st Additional District Judge, Siwan whereby he has been pleased to confirm the judgment and decree dated 21-6-1978 passed by Sri Mundrika Prasad, 6th Additional Subordinate Judge, Siwan in Title Suit No. 217 of 1973/31 of 1978 dismissing the suit of the plaintiffs- appellants.

(2.) The case of the plaintiffs-appellants, as per the plaint, in brief, is that the disputed land described at the foot of the plaint is the agricultural land of the plaintiffs which the plaintiffs had acquired from defendant No. 5 Bacha Prasad by virtue of three sale deeds executed on 22-6-1968 for valuable consideration of Rs. 5,000/- and since the date of purchase the plaintiffs have been coming in possession of the suit land further case is that the defendant Nos. 1 to 4 have no interest in the suit property. They have got no right to get the said land attached and auction sold. Further case is that Harihar Tiwary filed a collusive suit against defendant Nos. 5 to 7 in the Court of 2nd Munsif, Siwan and obtained a money decree and in execution of decree the suit land was put on auction sale in Execution Case No. 56 of 1971. When the plaintiffs came to know about the execution case, the plaintiffs preferred Miscellaneous Case No. 83 of 1971 under Order 21, Rule 58 of the Civil Procedure Code (hereinafter referred to as "C.P.C.") but the learned Munsif dismissed the said miscellaneous case after hearing both the parties without making discussion on the pleas and legal points raised by the plaintiffs-appellants. It has been stated that the dismissal of the application of the plaintiffs-appellants filed under Order 21, Rule 58, C.P.C. in Misc. Case No. 56 of 1971 is illegal and without jurisdiction and since the plaintiffs are the legal purchasers of the suit land as such for declaration of that title, necessity of filing of the suit arose.

(3.) The case of the contesting defendants (defendants No. 1 to 3) is that the sale deeds of the plaintiffs are not genuine and valid documents and the same are of without consideration. The plaintiffs never came in possession of the suit land by virtue of the said sale deeds. The entire story of execution of the sale deeds is concocted and the sale deeds are farzi, antedated and collusive documents. Further case of the defendants- respondents is that defendant No. 5 Bacha Prasad had executed a hand-note in favour of the defendant Nos. 1 to 3 and for recovery of debt the defendant Nos. 1 to 3 had preferred money suit bearing Money Suit No. 125/1968 which was decreed in favour of defendant Nos. 1 to 3. Thereafter Execution Case No. 56 of 1970 was filed in which the plaintiffs filed objection whereupon Misc. Case No. 83 of 1971 was instituted. However, by order dated 12-9-1973 the objection petition filed by the plaintiffs under Order 21 Rule 58 C.P.C. was dismissed. Thereafter the suit property was put on auction sale and in auction sale the contesting defendants purchased the suit land and since then they have been coming in possession of the suit land. It is stated that this suit was filed in collusion with defendant Nos. 5 to 7 and the same is fit to be dismissed.